Cowboys and Aliens—Just the Same Idea?
by John Aquino on 09/10/13
I’ve discussed the basic principle in copyright law that you can’t claim copyright of an idea. The recent case of Busti v. Platinum Studios Inc., W.D. Tex., No. 1-11-cv-01029, 8/30/13, illustrates this and concerns a film that many will have seen—Cowboys and Aliens, which premiered in July 2011 and starred Daniel Craig and Harrison Ford.
Here is the background. In 1995, “Cowboys and Aliens,” an 11-page comic book by Steven John Busti, appeared in the first issue of the magazine Bizarre Fantasy.
Two years later, Platinum Studios Inc. published a one-sheet image of a spaceship chasing a cowboy with the title “Cowboys and Aliens. This broadside was intended to drum up interest in a potential movie. The film rights were purchased by Universal Studios Inc. and Dreamworks II.
In 2006, Platinum published a graphic novel, “Cowboys and Aliens,” Universal released the movie five years later, and Platinum reissued the graphic novel in conjunction with the movie.
In December 2011, Busti sued Platinum, Universal, and Dreamworks in the U.S. District Court for the Western District of Texas—Busti was from Austin--alleging that the graphic novel and the film infringed Busti's copyright in his comic book.
At first blush, it would seem to be a reasonable supposition that the comic book titled “Cowboys and Aliens” inspired the broadside with the same title which inspired the movie with the same title. But that just means that the idea of cowboys versus aliens was out there. Did Platinum executives have access to Busti’s comic book? Were the comic book and the graphic novel substantially similar?
In response to the defendants’ motion for summary judgment, Judge Sam Sparks wrote that there was no indication that Busti’s comic book had been widely disseminated enough that Platinum executives must have seen it. He further stated that Busti’s comic book dealt with the general idea of cowboys versus aliens and no specific scenes from Busti’s comic book were used in the graphic novel or the movie.
The court wrote that there was “overwhelming” evidence that the graphic novel had been independently created and concluded that the 1995 comic book and the novel and film were not substantially similar.
Over and over the court rejected what it called Busti’s speculations that people at Platinum must have seen his comic book. He could not prove access. And in the end, what the court saw was two works with the same title that dealt with the same very general idea.
The court consequently granted the defendants’ motion for summary judgment of non-infringement.
I wrote earlier of the similarities between Orson Welles’ Citizen Kane (1941) and George Cukor’s Keeper of the Flame (1942). Both dealt with major public figures and with journalists who find that the men, who both lived in gigantic mansions, turn out to be less than they seemed on the surface. The lighting of Flame also seems similar to that of Kane. And there are also dissimilarities between the two films in period and tone, in the darker character of Forest in Flame as opposed to the more complex Charles Foster Kane, and in quality.
Citizen Kane was released by RKO, and Flame by M-G-M. While not a major financial success, Kane received a great deal of attention, was nominated for best picture, and won the Oscar for best screenplay. When Flame came out, it did respectable business, received no major nominations, is primarily know as the second pairing of Spencer Tracy and Katherine Hepburn, and nobody got sued.
Years later Cukor claimed that he had not seen Kane when he was working on Flame. “Something was in the air,” he said.
Two years after Jaws, which was about a killer shark, Orca came out, about a killer whale. You can’t copyright an idea.
Copyright 2013 by John T. Aquino
